The presumption of a legally enforceable debt under Section 138 of the Negotiable Instruments Act is rebuttable, and the burden lies on the accused to prove their defense, which was successfully demonstrated in this case.

JUDGMENT

These two appeals are filed by appellant-complainant challenging the common judgment passed in Criminal Appeal Nos.5/2009 and 6/2009 dated 08.08.2012 passed by the District and Sessions Judge, Kodagu, Madikeri, wherein, the learned Sessions Judge allowed the appeals filed by the accused holding that, admission by DW.3 who was not present at the time of loan transaction is not an admission and thus it is liable to be ignored and also held that the learned trial Judge has wrongly acted upon it.

2. These appeals have got a chequered history. Earlier, on the complaint filed by the present complainant, C.C.Nos.1792/2002 and 1791/2002 were filed before the Addl.Civil Judge (Jr.Dn.) and JMFC, Madikeri (`the trial Court' for short) against the accused alleging the offence under Section 138 of Negotiable Instruments Act, 1881 (in short `the Act'). The trial Court, after considering the case of the prosecution and also the defence, passed judgment of conviction and order of sentence dated 10.12.2008 convicting the accused for the offence under Section 138 of NI Act. This judgment of conviction and order of sentence was challenged by respondent-accused before the District and Sessions Judge, Kodagu, Madikeri (in short `the First Appellate Court') in Criminal Appeal Nos.5/2009 and 6/2009 which came to be allowed by judgment dated 08.08.2012 acquitting the accused of the offences alleged against him, against which, the complainant is before this Court in these appeals.

3. Earlier, the appellant-complainant filed Criminal Revision Petitions. Later, on the memo filed by learned counsel, the co-ordinate bench of this Court passed orders on 27.2.2013 and 2.4.2013 for conversion of Criminal Revision Petitions into Criminal Appeals. After conversion, the Criminal Revision Petitions were re-classified as Criminal Appeals and re-numbered as above.

4. As per the case made out by the complainant in C.C No.1792/2002 wherein the appeal was filed in Criminal Appeal No.5/2009, the case made out by the complainant in the said criminal case is that, on 01.06.2002 accused borrowed a sum of Rs.40,000/- from the complainant for his legal necessity. While borrowing the said amount, he issued a post dated cheque bearing No.029737 dated 31.08.2002. When the said cheque was presented to the Bank 02.09.2002. It was returned on 09.09.2002 with an endorsement as "funds insufficient". Thereafter, the complainant got issued a demand notice on 16.09.2002 which was received by the accused on 17.09.2002. Accused has not issued any reply to the said demand notice dated 16.09.2002. Thus, it is alleged by the complainant that, accused has committed the offence under the provision of Section 138 of Negotiable Instrument Act, 1881.

5. Similarly the case of the complainant in C.C. No.1791/2002 is nothing but the replica of the complainant allegations except the issuance of the notice date as 02.06.2002. The remaining facts are one and the same.

6. In both the cases, the trial was conducted independently. As per case of the complainant in C.C No.1792/2002, complainant himself was examined as PW.1. He got marked as Ex.P1 to P6. So also, the accused also entered the witness box as DW.1 and examined 2 witnesses in the shape of DW.2 and DW.3 and got Ex.D1 to D4. Likewise in C.C No.1791/2002, complainant independently entered the witness box as PW.1 and got marked Ex.P1 to P6. In the said criminal case also, accused entered the witness box as DW1 and examined 2 witness in the shape of DW2 and DW3 and got marked Ex.D1 to D4 and closed the defence evidenc